Academic journal article Journal of Risk and Insurance

Recent Court Decisions

Academic journal article Journal of Risk and Insurance

Recent Court Decisions

Article excerpt

WORKERS COMPENSATION APPLIES TO EMOTIONAL INJURY CAUSED BY SUPERVISOR CRITICISM

Appeal of New Hampshire Department of Health and Human Services 761 A.2d 431 2000 N.H. LEXIS 44 (New Hampshire Supreme Court, August 23, 2000)

In a decision much criticized by some in the insurance industry, the New Hampshire Supreme Court has affirmed a state Compensation Appeals Board decision finding a worker's "major depression" to be "compensable under the workers' compensation statutes because it was caused by employment-related stress arising from her supervisor's legitimate criticism of her work performance." 461 A-2D 432-33 2000 N.H. LEXIS 44 at *2.

Gail Sirvivis-Allen began working as a "Clerk I" with the State of New Hampshire in February 1978. She left state employment because of the depression and stress in August 1995 as a Case Technician II, a position she had held for nine years. The job duties included "taking applications for food stamps, Medicare, and disability, as well as verifying information and entering it into a computer," as well as contacting "clients and following up by letter." Id. at 432. Her job performance was checkered. "During her tenure," she often failed to adequately fulfill her assigned work responsibilities. In 1989, due to job performance problems including inaccuracy and a poor attitude, she was transferred to a slower-paced environment. In 1992, she was given a series of performance warnings and transferred to an even less demanding position. Her tenure was also marked by frequent medical and psychological problems . . . . In March 1994, she was diagnosed with clinical depression and problems related to attention deficit disorder (ADD) and excused from work [for a short time].

Id. at 432-433. Sirvivis-Allen returned to work in May 1994 and requested a quiet office location to aid her concentration, but this request was apparently not granted. Complaints were received about her work, engendering critical evaluations and warnings by her supervisors. She perceived this as being criticized "for every little thing" and "verbal abuse at work," according to her testimony at the board hearing. In August 1995, she left work, citing stress, and consulted a psychiatrist, complaining of headaches and chest pains. In 1996, her doctor advised that she could return to work in a less stressful position.

In September 1995, Sirvivis-Allen filed her workers compensation claims, "claiming that she suffered a work-related stress injury resulting from disciplinary action taken against her on or about August 5, 1995." Id. at 433. The Department of Labor hearing officer denied the claim. After a de novo hearing, the board reversed, finding that her "ADD constituted a pre-existing weakness which caused her work performance to suffer. It also found that her supervisor's criticism, although justified, caused her major depression. Finally, the board concluded that the respondent's work-related stress, which triggered depression, headaches, and chest pain, was greater than normal, non-employment related stress." Id. at 433.

The employer challenged the board's ruling, arguing that compensation benefits should not have been available because (1) Sirvivis-Allen was not injured in "accident"; (2) her depression and disability did not "arise out of" employment; (3) there was an insufficient showing that her problems were caused by the work-related criticism rather than other factors; (4) an award of compensation benefits was inconsistent with desirable public policy because "workers' compensation should not be awarded for injuries resulting from good faith criticism of an employee's job performance." Id. at 433. The court rejected all of these arguments and upheld the board's award of benefits to Sirvivis-Allen.

The court backed the board in part because it was the board. Under the applicable law of workers compensation, like most administrative law schemes, courts are required to defer to the fact-finding of regulatory boards unless they are clearly erroneous or their decisions are arbitrary and capricious. …

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